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Review of the
Criminal Courts of England and Wales

Chapter 11 - The Trial: Procedures and Evidence

Introduction
Trial by judge and jury
Evidence
The court at work
Sentencing

INTRODUCTION

1 Trial by ordeal, common throughout Europe in the Middle Ages, gave way in England to an accusatorial system based on trial by jury of a citizen's complaint, and in much of Europe to an inquisition by some trusted person. Eventually the two systems developed respectively into our system of trial by judge and jury, with a private or public prosecutor, and the continental inquisition in which, in its early stages at least, a judge acted also as prosecutor.

2 The shaping of the accusatorial process by jury trial as it developed towards its present form over the centuries is brought home by the realisation that until the middle of the eighteenth century almost all criminal cases were tried before a jury, and guilty pleas and summary trials as we know them today were rare. The trial, the setting for a public confrontation between accuser and accused and the court's first involvement in the matter, was, until well into the nineteenth century, often a very summary affair. In Europe on the other hand, the judiciary, in their inquisitorial role, spent much time before the formal trial process, privately interrogating witnesses and the defendant and building up a case file (dossier).

3 The contrast between our accusatorial system and the continental system has survived in large part until today, but as Professor John Spencer has put it:

"the borrowings between the two have been so extensive that it is no longer possible to classify any of the criminal justice systems in Western Europe as wholly accusatorial or wholly inquisitorial".[1]

4 Napoleon's Code d'Instruction Criminelle of 1808,[2] which formed the basis of or influenced many European countries' codes of criminal procedure, introduced a mixed system of a juge d'instruction who investigated the matter in private followed by a public trial before different judges sitting, in serious cases, with a jury. However, the role of the juge d'instruction has begun to wane or has disappeared in a number of countries; and juries, where they are part of the process, in general bear little resemblance in composition or role to those of the English jury.

5 Equally, English law, with the advent in the 19th century of local police forces and a Director of Public Prosecutions and, in the late 20th century of a centralised service of full-time prosecutors in the form of the Crown Prosecution Service,[3] has gradually focused courts' attention more and more on the manner of investigation and drawn them into pre-trial procedures. The result has been a longer pre-trial and trial process in jury cases, widespread use of pleas of guilty as a route to conviction and, since the mid 19th century, a remorseless increase in summary work to its present level of about 95% of all criminal cases.

6 The point of this short historical comparison is to draw attention to the relationship between the composition of the tribunal and its procedural and evidential rules and practices. Many aspects of a system developed over the centuries to introduce safeguards against the forensically primitive jury trials and harsh penal regimes of the time may not fit, or be necessary for, modern trials, whether by judge or jury or in some other form.[4]

7 A notable feature of the Review has been the widespread acceptance of the basic structure of the English criminal trial. It is shaped by the twin principles that the prosecution, as the complainant, has the task of making the tribunal sure of guilt and that the defendant has the choice of answering the prosecution case or remaining silent. The trial process is a contest between two parties, though, in some respects, it is no longer entirely adversarial. In it, the parties deploy their respective cases before a tribunal the role of which is primarily to listen, intervene only when necessary to ensure a fair and efficient trial and, at the end, to decide the issue of guilt. It is a continuous and public process in which the prosecution orally explains its case and still relies mainly on oral evidence to support it. The defence tests and challenges the prosecution case by cross-examining prosecution witnesses as appropriate and/or by submissions of law or as to the inadequacy of the evidence. If the defendant wishes, he may in turn give oral evidence and call witnesses in his support. Thus, our system of trial is dominated by the principle of orality, namely that evidence as to matters in issue should normally be given by oral testimony of witnesses in court, speaking of their own direct knowledge.

8 I have to record that, on the topics of trial procedure and evidence, I have received few proposals for fundamental reform in either the Crown Court or magistrates' courts. The general theme, particularly from judges, magistrates, the Bar and solicitors, is that, while there is scope for some improvement, the trial process is basically sound and should not be disturbed - often expressed in the hackneyed phrase "if it ain't broke, don't fix it".

9 Others were not so relaxed about the system. The Association of Chief Police Officers, in a comprehensive and powerful submission, set out a number of fundamental criticisms, the underlying theme of which was that pre-trial and trial procedures and rules of evidence are artificially and unfairly slanted in favour of defendants. In their view: the adversarial procedure relegates the court to a reactive role when it should have far greater direction and control of the way in which the issues and the evidence are put before it; fact-finders are wrongly denied access to material relevant to their findings of fact; procedural law - 'due process' - dominates substantive law to the extent of creating, rather than preventing, injustice, resulting in a loss of public confidence in the courts' contribution to the control of crime; the 'adversarial dialectic' and the 'principle of orality' have been elevated to ends in themselves rather than means to get at the truth and also, as a result, discourage modern and more efficient ways of putting evidence before the courts; and the criminal justice system over-all is not equipped to bring to trial and or try effectively those engaged in highly sophisticated and organised crime.

10 The police are not alone in criticising the system. Many distinguished academics with a close working knowledge of it have, in various studies, papers and articles in recent years been powerful advocates for procedural reform. Also, some judges of great experience in this field are impatient for principled reform of the trial process. Both complain of the piecemeal and muddled nature of our rules of procedure and evidence and the lack of an over-all philosophy in our consideration of the need for, and shape of, possible reform.

11 The fundamentals of the trial process are the same for trial by judge and jury as they are for the magistrates' courts. Yet, when most people, lawyers included, talk of trial procedures they think of trial by judge and jury. That is forgivable since, as I have mentioned, that is how most trials used to be. With the burgeoning of summary jurisdiction from the mid-19th century on, it was no doubt instinctive to borrow and adapt for its use much of the structure and procedures of trial by judge and jury. With Parliament's corresponding increase in provision for the trial of offences 'either-way' that I have described in Chapter 5, it was important to retain as much as possible of that commonality of procedures and rules of evidence. Subject to the necessary differences between trial with and without a jury, the aim must have been to stick to one concept of a fair trial whatever the composition of the tribunal conducting it. The result is a lumping together of the two jurisdictions when discussing criminal procedures and evidence, though usually in the context of trial by judge and jury because that's where most of the problems arise. In magistrates' courts, in the nature of things, trials are generally shorter, faster and simpler than they are in the Crown Court. I have, therefore, some sympathy for the Runciman Royal Commission for its focus on the trial procedures of the Crown Court and apparent disregard - for which it has been criticised - of those in the magistrates' courts. It is an imbalance I have sought, not always successfully, to avoid throughout the Review.

12 I have attempted to identify what is not working well and what major candidates there may be for change. In doing so, I have taken into account, not only the many submissions in the Review and academic and judicial writings on the subject, but also a large number of past and present studies and reviews of procedure and evidence in this and other common law jurisdictions. In all of this, it is important to keep in mind that different forms of tribunal may administer justice with efficiency in different ways. This has particular significance to my proposal for a unified Criminal Court consisting of various forms of tribunal, namely: judge and jury, judge alone, judge and lay members (in serious fraud cases), judge and magistrates (District Division), and magistrates on their own.

13 In terms of studies and reviews, this is well-worn and relatively recent trodden ground. The Philips Royal Commission, which reported in 1981, was directed by its terms of reference to examine pre-trial procedure. However, as it observed,[5] "it is the nature of the trial itself which largely determines the pre-trial procedure". Lord Roskill's Committee's Report in 1986, which, though focused on fraud trials, said much that was of application to trial generally. And the Runciman Royal Commission, appointed in the wake of mounting public concern over a number of high profile miscarriages of justice, was charged with a wide-ranging review of the manner and supervision of police investigations, the role of the prosecutor, expert evidence, pre-trial and trial procedures, evidence, the role of the court and other machinery in correcting miscarriages of justice. In its Report in 1993 it made a large number of recommendations, some of which were adopted and some not.

TRIAL BY JUDGE AND JURY

General

14 I start with trial by judge and jury because, as I have said, that is where most of our features of trial have their origin and in which, because of the partnership of judge and jury there are particular problems. Some of these are to be found in greater or less degree, according to the composition of tribunal, in the magistrates' courts. I return to them and other forms of tribunal below, but briefly.[6] I see the problem, not so much as speeding up the trial once it has started; much of the scope for saving of trial time lies in efficient preparation for it. If, in advance, the issues of fact have been identified, the issues of law and admissibility of evidence, have, so far as practicable, been resolved and the evidence of both sides has been pared down to deal only with the issues, the stage should be set for an orderly and expeditious trial. Putting aside unforeseen contingencies that can delay or interrupt any trial, the manner in which the case proceeds is then in the hands of the parties, their advocates and the judge. If the advocates are properly prepared and competent and the judge intervenes suitably to move the case on when they are prolix, repetitious or moving away from the issues, the case should make reasonable progress to its conclusion within present procedural constraints. For the moment, I want to look at the effect of the procedures on the fairness and simplicity of the process and, on jurors and other outsiders to it, as to its comprehensibility. I do so by following the passage of a trial from its beginning to its end.

 

The start of a jury trial

15 I wrote in Chapter 5 of the need to give potential jurors advance and adequate information in writing of what to expect before attending court to sit on a jury. I also referred to the need for more informative guidance on their arrival than the instruction video and talk from the jury usher that is now provided. But not all persons summoned for jury service have the inclination or mental rigour to do their homework before the first day of attendance. Some of them may be late on the first day because of difficulties in finding their way around and miss the video and/or introductory talk. Some may be distracted by the disruption of their work or domestic obligations. Many will be nervous about what is expected of them and bemused by the unfamiliar court environment. Before they have had time to become acclimatised, they are taken to a courtroom with strangely dressed judge and advocates and, often, a full public gallery. Almost immediately they are thrust into the limelight, as they are individually called forward into the witness box and asked to stand and swear the juror's oath.

16 Within a short time of all that novelty and after a few explanatory words from the judge, they are expected to listen, take in and remember from the prosecuting advocate's speech what the case is all about. Conventionally, such an opening is a fairly - sometimes a very - detailed exposition of the constituents of the charge or charges, the issues to the extent that the defence may have indicated them and the proposed prosecution evidence. They may be provided during the opening with copies of documentary exhibits, schedules, photographs or plans as required. In large and complex cases, the judge may give juries a more extended explanation of what they are in for, and the prosecution may provide them at the outset with more elaborate documentary aides-memoires. But, in all cases the jury's introduction to the case is essentially oral, a telling of a story by the prosecuting advocate from the prosecution's point of view.

17 Whilst jurors are told by judges that they may take notes and are provided with the materials to do so, the pace of the prosecution advocate's opening and their own unfamiliarity with such a technique may not encourage it. Yet, somehow, these strangers to the forensic process are expected to absorb, unaided, in the main, by a written summary or reference to key issues and allegations and counter-allegations relating to them, the prosecution advocate's framework of what is to follow. The reality is, of course, that most of them cannot, and cannot reasonably be expected to, retain all that detail. The system's answer to that is repetition, and the promise of it. Often a judge, in his short introductory remarks before the prosecuting advocate's opening, tries to reassure a jury by telling them that they need not worry about taking in and remembering all the detail straightaway because they will hear it all again many times - in the evidence in chief and cross-examination of witnesses, in the advocates' closing speeches and in his summing-up at the end of the case. And, as in the case of students preparing for examinations or actors learning their lines, sheer repetition, no doubt, eventually fixes the memory of at least some of them.

18 To anyone other than lawyers steeped in the procedural traditions of the criminal courts, this must seem a strange way to expect jurors, upon whose understanding and judgment so much depends, to do justice in the case. When they embark upon it they are given no objective and convenient outline in oral or written form of its essentials, the nature of the allegation, what facts have to be proved, what facts are in issue and what questions they are there to decide. And, mostly they have little in the way of a written aide-memoire to which they can have recourse as the case unfolds to relate the evidence to such questions. Any experienced court observer has only to note the exhaustion, and sometimes the distress, of jurors as a case of some length or complexity moves towards its end and the enormity and complications of their decision-making task is belatedly brought home to them. Trevor Grove, in his informative and entertaining book, "The Juryman's Tale", quotes an American Judge who said that it was like "telling jurors to watch a baseball game and decide who won without telling them what the rules are until the end of the game".

19 Depending on the case, on the nature, volume and detail of the evidence and on the aptitude of individual jurors to absorb it, the repetitive nature of the process may be helpful or become tedious in the extreme. But it is commonplace for juries, having retired to consider their verdict, to return to court to ask the judge to be reminded of what a witness has said and, often, for a copy of his written witness statement. In most instances they know that there is such a statement because the advocates and the judge were plainly following their copies of it as he gave his evidence, the witness may have referred to it, or the advocates may have cross-examined and re-examined him by reference to it. All the leading players in the courtroom have a copy, but not the jury. If no point was taken on the statement, they are left to their recollection and the reminders of the advocates and the judge of what the witness said. If a point was taken about the difference between his evidence and the statement, they are dependent on what the advocates and the judge have told them of the contents of the statement as it compares with the witness's oral evidence. Either way, they are not allowed to see the document.

20 What more natural request - in any setting but that of a criminal court - than to have access to a witness's written statement made shortly after the event, when considering his oral evidence long after it? Putting aside for a moment the rule that such a statement or part of it is not admissible evidence, save by reference if a witness confirms it in cross-examination, the main rationale for not allowing juries to see it, is that, even with a proper warning and further reminder by the judge of the witness's oral evidence, they would be likely to give the statement more weight than their recollection of what he said. There is a similar problem in the case of evidence in chief of young children recorded on video-tape, even if, when the jury are permitted to view it for a second time, it is accompanied by a reminder of the cross-examination and re-examination.[7] So, what more could and should be done at the start of and throughout trial to assist the jury's understanding of the trial process, the case in hand, what they are there to decide and to assist them in their task?

21 First, there is the indictment (or charge as I have recommended it should be called in future). To the extent that it does not happen already, each juror should routinely be provided in all cases with a copy of the charge or charges at the outset. I say "all cases" because under my proposal for allocation of work in a new unified Criminal Court, all cases tried by judge and jury are likely to be of some substance. In Scotland, each potential juror is handed a copy of the indictment as he enters the jury box.

22 Second, I am strongly of the view that the time has come for the judge to give the jury at the start of all cases a fuller introduction to their task as jurors than is presently conventional, including: the structure and practical features of a trial as it may affect them, a word or two about their own manner of working, for example note-taking, early selection of a foreman and his role, asking questions, time and manner of deliberation etc. He should also give them an objective summary of the case and the questions they are there to decide, supported with a written aide-memoire. I have referred to this in Chapter 10 as a "case and issues summary". The parties' advocates should prepare and agree the summary in draft before the trial (and be paid for doing so) for the judge's approval and use by him, them and the jury throughout the trial. The summary should identify:

23 There is little new in the proposal of a short introduction by the judge to the jury of the case and the issues they are there to decide. Some judges in England and Wales do it. Scottish judges often do it by reference to the narrative indictment which is customary in their jurisdiction. And the practice is well established in the United States. As I have seen, it serves as an impressive and effective objective introduction to the jury of the task ahead of them. If and to the extent that the issues narrow or widen in the course of the trial, the case and issues summary should be amended and fresh copies provided to the judge and jury as an update of the matters on which they have to focus. At the end of the trial, it should also serve as a common point of reference for the judge and advocates when considering any matters of difficulty before speeches, and also for the jury during speeches and the summing-up. Now that most judges and practitioners use word processors as a normal working tool, creating and maintaining such a running and useful aide-memoire is not the burden it might have been only a few years ago.

24 I know that many criminal practitioners may not initially welcome this proposal, one that requires the advocates on both sides to co-operate in providing a basic document for the use of the judge and the jury as well as themselves. They may believe that it would be impracticable in the hurly-burly of their life, preparing cases for trial - often in the cracks of the day while engaged in the trial of other cases. However, equally busy civil and family practitioners have become accustomed to the discipline of advance and concise identification for the courts of the issues and as part of their own preparation for trial, in documents setting out the agreed facts, those in dispute and the issues for determination. I recognise that in those jurisdictions such documents are primarily skeleton arguments rather than a common aide-memoire. I recognise too that in criminal cases there are special considerations of the liberty of the subject and the safeguards of the prosecution's heavy burden of proof and the defendant's right of silence. But I am not proposing routine exchange and provision to the court of skeleton arguments or pleadings, simply a neutral and summary document derived from the sort of analyses that competent advocates on both sides would, in any event, need as part of their own preparation for trials of substance, which, under my proposals, would in future be the sole or main candidates for trial by judge and jury. I should note that in serious and complex frauds there is already provision for the judge to direct both sides to provide the court and each other with a 'case statement' setting the sort of matters that I have in mind for this purpose.[9] If there are improvements in the manner of preparation for trial, as I have recommended in Chapter 10, the task should not be too onerous and would serve as a valuable checklist for all in the course of the trial.

I recommend that in all cases tried by judge and jury:

Time estimates

25 Under the present plea and directions system, trial advocates are required to inform the court of their estimates of the likely length of the trial and to keep it informed of any variation in it. Normally, the judge asks them about it on the first day of trial. In cases of any length it has long been good practice for the prosecuting advocate to prepare in good time before trial a provisional list of the order in which he will call prosecution witnesses. This enables arrangements to be made, so far as possible, for staging their attendance at court and, by supplying a copy to the defence and the court, advance indication of the order of subject matter of the evidence. Normally the prosecuting advocate does not attempt to estimate, other than by reference to the number of witnesses to be warned for each day, how long each will take, and the court does not require it. The same applies with the defence.

26 I am generally against any attempt to introduce rigid time limits for various stages of a criminal trial. However, in cases that have required careful and detailed preparation, a joint estimate of how long the principal witnesses would take to give their evidence assists in the more accurate staging of their evidence and should introduce a useful discipline for advocates in their respective questioning of them. There is provision for this in the judge's questionnaire for use in the plea and directions hearing, though there are indications that advocates could give it more careful consideration than the time taken at trial suggests they do. Such a system seems to work better in children's cases in the Family Courts where, pursuant to guidance given by the President,[10] advocates on both or all sides at the pre-trial review submit a schedule to the court indicating how long each will spend with each witness. Of course, such estimates are likely to be rough and ready approximations; much will depend on the manner and content of the witnesses' response to questions and where the questioning leads. But they are useful as a rough guide to planning and some reminder to the advocates, where practicable and consistent with the proper conduct of their cases, to try to keep to them.

I recommend that advocates should regard it as of the highest importance to attempt accurate estimates of the likely length of their principal witnesses' evidence, including a review of them as the issues become clearer in the course of preparation for trial.

Opening speeches

27 Refinement of the issues, confinement of the proposed evidence to the issues and an introduction from the judge, coupled with a case and issues summary, as I have recommended, should reduce the need in many cases for a long opening prosecution speech. In Scotland, they manage to do without a prosecution speech altogether. I write this with pangs of nostalgia because there are few pleasures at the criminal bar greater than opening an enthralling prosecution case to a jury. But the time and best use for advocacy is later as the evidence begins to unfold. I do not go so far as the Runciman Royal Commission in suggesting a presumptive time limit for the prosecution advocate's opening unless the judge has given leave for longer.[11] But I do endorse its general recommendation against overloading the jury in the opening with the detail of the proposed evidence or of the law unless it is essential to their understanding of the task ahead.[12]

28 I have always been puzzled at the lack of any formal provision for a short opening defence speech at the beginning of a criminal trial and at the general reluctance of defence advocates to make one, even when the judge informally invites them to do so. No doubt there are tactical reasons for the latter where the defence is weak or uncertain or dependent on the appearance or performance of critical prosecution witnesses. But in many cases it would be of strategic advantage to the defendant as well as of assistance to the jury for his advocate to balance the prosecution's opening by underlining the nature of his defence at that stage.

I endorse the Runciman Royal Commission's recommendation[13] that a defence advocate should be entitled to make a short opening speech to the jury immediately after that of the prosecution advocate, but normally of no more than a few minutes.

Evidence in chief

The art of examination in chief

29 Getting the witness to give a clear, orderly and relevant account, but in his own words - and its contribution to the pace of a trial - are often under-estimated. Two major causes of delay in the progress of trials under our present system are the manner in which witnesses are required to give their evidence in chief and the interruption of it by technical and often arid disputes as to its admissibility. As to the manner of giving evidence, it can be an extremely slow and difficult business to elicit from a witness an orderly, comprehensive and accurate account of the matter on which he is there to give evidence. The advocate examining him is not permitted to lead him - ask him questions that suggest the answers. And, unless the witness is a police officer or other experienced witness, he may be nervous, or he may lack the ability to give a clear account, or he may not remember all or some of the important detail. Sometimes the opposing advocate may assist on those parts of the evidence not in dispute by indicating to the judge that he does not object to the witness being led. Sometimes, in the hope that the witness may not come up to proof, he may not assist in that way.

30 As if those impediments to presenting a brisk and clear account to the court are not enough, the verbal gymnastics involved in seeking to overcome them often lead to distracting and off-putting interruptions to the witness. The advocate examining him will be alert to prevent him from breaching the rules of evidence, mostly the rule against hearsay, before his opponent rises to his feet to object. There are thus constant breaks in the flow of the story while the witness is warned - to his bewilderment and that of the jury - why he cannot give his account as he would in any other setting. In that way, as Professor IH Dennis has recently written, the adversarial nature of the process can also distort the witness's account from that which he would have given, if left to himself:[14]

"... witnesses will not generally be questioned by anyone involved in the proceedings in a spirit of free impartial inquiry. Partisan, controlled questioning is the norm, and free report by the witness is the exception. This point helps to explain why some witnesses find the process of testifying at best bewildering, because they are unable to tell their story in their own way, or at worst traumatic, because of 'robust' cross-examination which may have the effect of making them feel that they themselves are on trial".

31 There are frequent skirmishes, signalled or played out in the jury's presence as to the form of the examining advocate's questions or as to whether and in what form the witness may be allowed to refresh his memory from written material. These are unedifying and, in my view, disfiguring aspects of our trial process. They are prompted in the main by archaic and inappropriate rules of evidence, giving unrealistic primacy to the oral over the written word and causing confusion and anomaly where common sense suggests another course. The rules make the truthful witness's evidence a test of his memory rather than ensure its truthfulness and accuracy, and they do little to expose the dishonest witness's lies. In my view, something should be done to enable a witness's evidence in chief to be put before a tribunal more cleanly than is now the case. I have in mind general reform of the rule against hearsay and, in particular, widening the category of documents from which he may refresh his memory while giving evidence or, possibly, by allowing an earlier written statement or audio or video-recorded record of questioning to stand as his evidence in chief. I discuss these possibilities in more detail under the heading of Evidence below.[15]

The use of information technology

32 Information technology, in various forms, could be of great value in simplifying and making more effective the presentation of evidence. Just as there could be a single electronic case file for the use of all involved agencies and parties in preparation for trial, so also, in cases meriting it, there could be a single electronic trial file to which all involved in court, including the judge and jury, could have access on screen.[16] This could enable documents to be presented on screen, whether as electronic text or a scanned image, the use of photographic three dimensional images of exhibits, and computer generated drawings, simulations and animations.

33 There are, of course, risks associated with the use of these new technologies before a jury. A well prepared computer animation could be a very powerful exhibit, and overshadow other evidence in the minds of jurors.[17] And the use of information technology may not be appropriate or necessary in the presentation of evidence in many cases. But in the right cases its potential for assisting the jury should not be underestimated. Also, if evidence is being presented on screen to the jury, arrangements should be made so that those in the public gallery and press box are also able to see it.

I recommend that screens and projection equipment should be more widely available to enable electronic presentation of evidence in appropriate cases.

Cross-examination

34 The Runciman Royal Commission was concerned about prolongation of trials and unfairness to witnesses by the incompetence or overbearing behaviour of advocates, and about the failure on occasion of judges to control such conduct. In the intervening eight years the Bar and solicitors have done much, by way of continuation training and the promulgation of codes of conduct,[18] to improve the general quality of advocacy. With encouragement from the Court of Appeal, (Criminal Division), and greater emphasis in training, judges and magistrates are now more alert than formerly to their power and duty to intervene to prevent repetitious or otherwise unnecessary evidence and to control prolix, irrelevant or oppressive questioning of witnesses. There is still room for improvement in advocates' conduct of trials, particularly at the junior and inexperienced end of the professions, resulting all too often in costly appeals with little benefit to the defendant/appellant or to justice. And there are still the odd cases when a judge has not acted as firmly as he might have done to prevent incompetence or misconduct. Often the decision when to intervene is a difficult one, and it is not aided by the developing tension between Article 6, in its focus on due process, and the safety of the conviction. There may also be a difficulty for a judge in a long trial to assess the impact of individual rulings on the fairness of the trial over-all. These are, in the end, matters of judgment in individual cases, some of which can be troublesome to the Court of Appeal when the matter reaches them. I do not believe that legislation of the sort urged by the Runciman Royal Commission[19] is necessary as an encouragement to judges to be robust in their control of proceedings or a practical aid in keeping them within proper bounds. But the Court of Appeal should support them.

 

The defence case

35 If, as I have recommended, the judge at the outset of the case introduces the jury to the issues they have to decide with the assistance of a case and issues summary, and if the defence advocate has made a short opening speech after the prosecution opening, there should normally be no need for the defence to open the case at the close of the prosecution case. However, whether or not the defence advocate has made an earlier short opening speech, he should be entitled to make one at this stage, and I do not see why that entitlement should continue to depend on whether he is intending to call a witness as to fact other than the defendant. That limitation was introduced in 1898[20] to curb what had formerly been an unlimited right to a defence opening granted in 1865[21] when a defendant was not entitled to give evidence on his own behalf.

I recommend that:

Judges' power to call witnesses

36 The power of judges to call witnesses undoubtedly exists, though the established weight of authority - most of it before the Runciman Royal Commission Report in 1993[22] - is that it should be used sparingly and only to achieve the ends of justice and fairness. Certainly, a judge should not undertake the role of the prosecutor, for example by calling further prosecution witnesses in order to pursue a case that the prosecuting advocate has decided it is not proper to pursue.[23] However, he may cause to be called, or himself call, a witness not called by the prosecution or defence, and without the consent of either, if he considers it necessary in the interests of justice. The Runciman Royal Commission urged judges, in appropriate cases, to make more use of this power or to suspend a trial to enable further investigations to take place.[24] So far as I can tell, judges here continued to be sparing in their use of such powers. The arrival in the intervening years of a system of mutual advance disclosure, earlier identification of issues and greater involvement of judges in overseeing the preparation of cases for trial should have equipped them better to identify in the course of trial whether justice requires the calling of a witness whom neither side has considered or wishes to call. Nevertheless, so long as we retain our essentially adversarial system, I consider that judges should use this power only in exceptional cases, where justice demands it. Even then they should be cautious about its use because one or other side may have very good reasons, that they cannot divulge, consistent with justice and in the interests of a fair trial, for not calling the witness themselves. There is also a danger, where the witness is thought to be possibly adverse to the defence case, in the judge assuming what might be perceived as the role of an auxiliary prosecutor. In the main, judges should be able to rely, on the one hand, on the competence and sense of public duty of the prosecutor to protect the public interest and, on the other, on the defence advocate to know what is in the best interest of the defendant.

Taking stock

37 It is vital that the judge and the advocates, in the absence of the jury, should take stock of the case at the close of all the evidence and before speeches and the summing-up. This should take two forms. First, this is the time for the judge and advocates finally to review the case and issues summary and, if necessary, to amend it for the jury. The case may have taken a different turn as the evidence unfolded or as unexpected legal points emerged, removing some factual issues or introducing new ones. Second, if there appear to the judge or the advocates any points of difficulty as to the manner in which he should apply the law or as to his treatment of the evidence in his directions and summing-up to the jury, he and they should discuss and, if possible, resolve, them. Similarly, if he intends to supplement his oral directions and/or the case and issues summary with a written list of directions or questions, he should also show that to the advocates for comment at this stage. It is vital that they should be able to fashion their speeches knowing how he is going to put the matter to the jury. It is also a useful exercise for judge and advocates together to remove in advance any misunderstanding and, so far as possible, scope for error. There is nothing new about such an exercise. Over the last ten or so years the Court of Appeal has urged it in case after case, many of them reported and mentioned in successive editions of Archbold.[25] But the Court of Appeal is still frequently troubled with errors resulting from failure to take this basic and common sense precaution. In my view, it is of such importance that it should be considered for inclusion in the Criminal Procedure Code that I have recommended and, in the meantime, for consideration by the Lord Chief Justice in a special practice direction.

I recommend that:

38 There is another and connected matter that I consider needs urgent clarification. A prosecuting advocate has a positive duty, before or after the judge sums up the case to the jury, to draw to his attention any prospective or actual errors of law. He is also obliged to ensure that the judge's directions and summing-up contain all the essential ingredients. However, there appears to be some uncertainty, both as a matter of law and professional conduct rules, as to the corresponding duty of the defence advocate. It stems from an obiter observation of James LJ in R v Cocks in 1976[26] that "a defending counsel owes a duty to his client and it is not his duty to correct the judge if a judge has gone wrong". Robert Goff LJ (as he then was), when presiding in the Court of Appeal in a subsequent case not calling for decision on the proposition, was clearly uneasy about it.[27] It is said[28] that the Code of Conduct of the Bar of England and Wales does not specifically deal with the matter in that it merely states counsel's general duty to inform the court of all relevant decisions and legislative provisions of which he is aware, whether favourable or not to his case, and to inform the court of any procedural irregularity during the hearing, and not reserve it for appeal.[29] The relevant provisions of the Code in force at the time of the Runciman Royal Commission were the same or similar, and the Commission found them unsatisfactory as to the extent of defence counsel's duty. It recommended clarification to require him to intervene where the judge had plainly overlooked or misinterpreted a legal matter.[30]

39 In my view, if and to the extent that the law and professional codes of conduct do not require a defending as well as a prosecuting advocate to seek to correct any error of law, or for that matter, of material fact, of the judge of which he becomes aware, both the law and the codes should be changed to require it. A defendant's right to a fair trial, including the twin requirements that the prosecution must prove his guilt and that he can remain silent, do not entitle him to ignore the error hoping for a better chance of acquittal or in the hope, if there is a conviction, of getting it quashed in the Court of Appeal. As Professor Sir John Smith has commented:

"... counsel owes a duty to the court. Should not that duty extend to the correction of an obvious slip on the part of the judge? By doing so, he ensures that his client gets a fair trial instead of an unfair one. A client aware of the possible tactic of silence might not like it; but his right is to a fair trial and, if gets that, he should have no complaint."[31]

I recommend that if, and to the extent that, the law and professional codes of conduct do not require a defending, as well as a prosecuting, advocate to seek to correct a judge's error of law or of material fact of which he becomes aware, both the law and the codes should be changed to require it.

Closing speeches

40 I do not, as the Runciman Royal Commission did,[32] recommend any normal limit of time on closing speeches and/or consideration by the judge of costs sanctions against advocates who, he considers, have unjustifiably exceeded it. I believe that it would be wrong and, in any event, impracticable to attempt such prescription. It would be wrong to subject advocates at so critical a stage of the case to the additional strain and, in many cases, distracting pressure of an arbitrary time limit. I also believe that it would be capable of seriously prejudicing one or other party in any but the most simple cases. And, if strictly enforced it could be vulnerable to an Article 6 challenge. As to practicability, cases vary enormously in the time that advocates may require to open or close them to a tribunal. To attempt a norm (the Royal Commission suggested 30 minutes) is about as unhelpful as fixing on an average. Whatever reduction in the length of closing speeches such a norm might achieve could be lost in many cases in submissions as to the need to exceed it and/or as to the appropriateness of a costs sanction for exceeding it. However, the absence of formal time limits does not mean that judges are or should be without power to intervene to control prolixity, for example, where the advocate is repetitious or advancing irrelevant arguments. As always in such circumstances, the Court of Appeal should support them.

Judge's directions on law and summing-up

41 I have considered how the judge's directions to the jury on the law and his summing-up of the evidence could better assist juries in their task and, thereby, improve the quality of their decisions. As I have said, I believe that, under our present procedures and rules of evidence, we expect too much of juries, particularly in longer and more complicated cases.[33] If my recommendation for a case and issues summary is adopted, future juries will have a head start on their present day predecessors. When the judge at last turns towards them to begin his summing-up, they will have those, by then, familiar aides-memoire before them. The judge can use them as the framework for his directions and reminder of the issues and evidence on both sides material to them. If the case and issues summary has been updated, he may not need to consider providing them with any further written list of questions. But he should do so if the summary needs supplementing and they are so numerous and/or complicated as would suggest a need for them. As now, the judge should use such of those documents provided to the jury as an integral part of his summing-up, referring to the points in them, one by one, as he deals with them orally[34] - much in the way that other public speakers use a power-point machine to illustrate and pace their delivery at a speed that the audience can follow. I have already mentioned the way in which modern information technology could enable some categories of evidence to be more effectively presented to a jury by electronic rather than by conventional means. Judges also should make use of it where appropriate, provided that they keep it simple.[35]

42 The case law is well established as to judges' incorporation into their summings-up of written or other visual aids, and I believe is generally followed. However, to mark the importance of the new case and issues summary, I believe that consideration should be given to including it in the Code of Criminal Procedure that I have recommended and, in the meantime, in a direction of the Lord Chief Justice.

I recommend that:

43 So much for the means of presentation of the directions and summing-up. What about the content? At present it has four main elements: first, a broad identification of the issues; second, directions of law of a general nature and as to the elements of the charges; third, how the matters of law bear on the issues; and fourth, an account of the material evidence on both sides bearing on the issues, including guidance on any inference that the jury may draw from them.

44 Under the scheme I propose. the judge would still start with a broad identification of the issues, referring the jury, as I have said, to the case and issues summary and any supplemental written list of questions for them to answer. Under the present system he would then normally tell them about the law, apply it to the issues and then turn to the facts. This is often a long and burdensome journey for judge and jury alike. In my view, there is a better way for both of them, and one that is true to their partnership in the trial of crime. The judge should no longer direct the jury on the law or sum-up evidence in the detail that he now does. In one sense, as Professor Edward Griew, a distinguished academic criminal lawyer pointed out some years ago, the law is nothing to do with the jury-- "It should be the function of the judge to protect the jury from the law rather than to direct them on it".[36] And, save in particularly complex or long cases, or where the evidence has not been put before them in a manageable way, he should not need to remind the jury in great detail of the evidence. Scotland, with its narrative indictment and no prosecution opening seems to manage well enough without the comprehensive judicial survey of the evidence that is commonplace here. And most jurisdictions in the United States combine the judge's fairly extensive introduction of the case to the jury at its start with little or no mention of the evidence in his 'charge' to them at the end. Whilst the American system is not without its critics, its jury system retains a central role in the administration of justice in both Federal and State courts and in both criminal and civil jurisdictions.

45 As to directions of law, our present system is to burden the jury with often highly technical and detailed propositions of law - lots of them. Many are prolix and complicated, often subject to qualifications and in some instances barely comprehensible to criminal practitioners never mind those who may never have heard them before. They have become worse in all of these respects over recent years, in part as a piecemeal response to rulings of the Court of Appeal refining and qualifying the law on which the earlier forms of direction were based. Not surprisingly, judges need a crib for these directions when preparing their summings-up; and one is provided for them by the Judicial Studies Board in the form of a Bench Book containing specimen directions. The start of most summings-up consists in the judge reading or rehearsing adapted versions of the appropriate specimen directions to the jury, who are expected to take them all in and retain them in their mind for their later deliberations. Many judges and practitioners accept the system because that is how they have always known it, though they recognise it has become vastly more complicated for them and the jury than it was. For many others the process is, frankly, an embarrassment in its complexity and in its unreality as an aid to jurors in returning a just verdict. To return to Professor Griew and the passage from which the above quotation came:

"... a more radical simplification of the summing up should be achieved by freeing it of any implications of the theory that the jury are concerned with the law as well as the facts. It should be the function of the judge to protect the jury from the law rather than to direct them on it. The judge does in practice typically tell the jury that the law is for him and facts are for them. This should become more profoundly true than it now is. A brief statement of the law will be unavoidable if the case is to be intelligible. But what is said should not be by way of formal instruction. When it comes to instructing the jury on their task, the job of the judge should be to filter out the law. He should simply identify for the jury the facts which, if found by them, will render the defendant guilty according to the law of the offence charged and of any available defence".

46 As to the facts, like the Runciman Royal Commission,[37] I consider that judges should continue to remind the jury of the issues and, save in the most simple cases,[38] the evidence relevant to them, and should always give the jury an adequate account of the defence. But they should do it in more summary form than is now common; and, again, the Court of Appeal should support them. Whilst each case calls for its own treatment, they should, in the main, refer only to evidence which bears on the issues.

47 Such an approach should remove or significantly reduce the scope for judicial comment in summings-up; though judges now rarely deserve Serjeant Sullivan's barb at the end of an Old Bailey trial that the jury should be asked whether they found for the defendant or his Lordship.[39] And it would significantly reduce the scope for time-consuming appeals to the Court of Appeal which routinely include complaints, rightly or wrongly, that the trial judge has summed-up the evidence unfairly or commented on it in a manner unduly prejudicial to the defendant.

48 The scheme that I have proposed should mean that, when the judge begins to address the jury, they should already be familiar, in an organised way, with the essential issues and evidence relevant to them and will have at their finger tips a convenient aide-memoire in the form of the case and issues summary. Thus aided, the judge should find it easier to achieve Lord Hailsham LC's memorably described model of:

"a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts".[40]

49 I believe that simplification of the way in which judges direct and sum up to juries is essential for the future well-being of our system of trial by judge and jury. I recognise, however, that the task of extricating us from our present tradition would be formidable. The Court of Appeal bears ultimate responsibility for the elaborate and complex structure now enshrined in the Judicial Studies Board's specimen directions. What is needed is a fundamental, and practical review of the structure and necessary content of a summing-up with a view to shedding rather than incorporating the law and to framing simple factual questions that take it into account. Perhaps a body drawn from the judiciary and the Judicial Studies Board could be given a blank sheet of paper and charged with the task.

50 Under the simpler scheme that I have in mind, the judge's prime function would be to put a series of written factual questions to the jury, the answers to which could logically lead only to a verdict of guilty or not guilty. The questions would correspond with those in the up-dated case and issues summary, supplemented as necessary in a separate written list prepared for the purpose. Each question would be tailored to the law as the judge knows it to be and to the issues and evidence in the case. One likely objection to that course would be the time taken in preparing the written questions and inviting the advocates' comments on them. But much of the work would have been done in the preparation of the case and issues summary. And, in any event, it is an exercise that in one form or another provides the bones of a conventional summing-up and also of lists of written questions for the jury that are now commonplace in cases of any complexity. And there should be significant savings of time in shorter summings-up, swifter verdicts and the avoidance of lengthy consideration by the Court of Appeal of challenges to the minutiae of judges' directions of law and treatment of the evidence and the merits. If the procedure that I have so far recommended finds favour, there are then two options for the next stage of the trial, the jury's verdict.

51 The first option is the easy one, namely leave the jury to answer the questions with a single answer as now - a verdict of guilty or not guilty - based on a reasonable belief that the new procedure would be more helpful than the present in assisting them to reach a just verdict.

52 The second is the logical one, though it has considerable 'political' difficulties and problems of expediency, both of them going to the root of our traditions of trial by judge and jury. The judge could, if he considers it appropriate, require the jury publicly to answer each question. The verdict, which he would require them to declare would flow logically from their answers to his questions. There would be nothing novel about the machinery, save in its modern day application to criminal cases. That is how it operates in some civil cases tried by a judge and jury where the judge gives judgment in the light of the jury's individual findings of fact.[41] It is still possible in criminal cases in the form of a 'special verdict', though a judge has no power to compel a jury to find a special verdict, and the procedure has been barely used since the 19th century. It may be a 'rusty' weapon, as Dr Glanville Williams has described it,[42] but perhaps it is time to polish it up and use it again. In my view, as I have said in Chapter 5,[43] the time has come for judges, where they consider it appropriate, to require juries to identify their process of reasoning by seeking from them answers to specific questions fashioned to the particular circumstances of the case. And I see no reason why the jury should not be required to return a special verdict or verdicts if directed by the judge, whatever the present state of the law about that.[44]

53 A return to special verdicts where appropriate would have a number of important advantages. First, it would be a convenient way of producing a publicly reasoned verdict whilst also removing some of the Article 6 restlessness about the present form of jury verdicts. Second, it would significantly reduce the ability of a jury to return a perverse verdict, whether of not guilty or guilty. Third, it would be a more honest and open system of justice. Fourth, it should induce a more structured debate in the jury room, thus reducing the chance of prejudice influencing the outcome. Fifth, it could identify the impact on the verdict of "controversially admissible" evidence admitted in the trial. And sixth, it would lead to better informed decisions in the Court of Appeal.

54 Despite all those advantages, I can foresee great opposition by the many and fervent supporters of the jury system to a public particularisation of a jury's verdict in that way. As I have said, it would go some way to removing from the jury its ability, which many cherish, to enter a perverse verdict. Though a determined and sufficiently conspiratorial jury could still manage it in their answers to one or more of the individual questions of fact. There is also the objection of expediency, likely to be articulated by many experienced criminal judges and practitioners, that it would be harder to secure unanimous verdicts because different jurors are likely to take different views on different questions, whereas, under the present system, all or an acceptable majority can agree on the final verdict. (I have referred in Chapter 5 to the rule that judges must direct juries that they can only convict if they agree on every ingredient necessary to constitute the offence charged.[45]) But the premise of that objection is that the jury system may not be working as it should do and that requiring juries to particularise their verdicts would reveal that.

55 I find both those arguments unattractive in their lack of logic and their apparent determination to preserve an ancient institution without matching its performance to modern needs. My conclusion, which I have already expressed in more general terms in Chapter 5,[46] is that a judge, where he considers it appropriate, should be able to require a jury to justify their verdict by answering publicly each of his questions.

I recommend that:

Trial by Judge alone

56 Trial by judge alone would have much of the structure but, necessarily, many differences in procedure and evidence from that of trial by judge and jury. The role of the judge should not be considered as if it were something in isolation. Without a jury it becomes more than that of an umpire and distiller of law and facts for a separate fact finding body; he is also the fact-finder. He is inevitably more interventionist, testing and probing the issues of law and fact as they are canvassed before him. There is a greater dialectic between him and the advocates. And there is less of a role or need for procedural and evidential constraints designed to insulate lay fact finders from potentially unfairly prejudicial evidence. This is not the place to analyse the many differences in the two forms of trial procedure. As I have said in Chapter 5, there are many well established models of trial by judge alone in the United States and several Commonwealth countries, and we have it nearer to home in the Diplock Courts in Northern Ireland and in our magistrates' courts when presided over by a District Judge. For a useful examination of the possibilities and practicalities of this mode of trial I can do no better than refer the reader to the writings of Professors Jackson and Doran and other authors mentioned in Chapter 5.

Trial by judge and magistrates in the District Division

57 As with trial by judge alone, the main structure of the trial process would be the same as with trial by judge and jury. I have already summarised in Chapter 7 how the District Division could work.[47] For the sake of convenience I repeat part of that summary here.

58 I propose that the District Division bench would consist of a judge, normally a District Judge, and two magistrates. However, the District Judge should be able to make binding preliminary rulings on his own at pre-trial hearings as would a Crown Division judge. At the trial the judge would be the arbiter of all matters of law, procedure and the admissibility of evidence. He would rule on such matters in the absence of his lay colleagues wherever he considered it would be potentially unfairly prejudicial to the defendant to do it in their presence. As to the facts, he and the magistrates would each have an equal say, and the decision of the court when not unanimous could be by a majority of any two of them.

The case and issues summary

59 It should not normally be necessary to have a case and issues summary in the District Division. However, in cases of complexity, the judge should be able to direct it if it will assist him or his colleagues on the bench. In that event, he should also, where appropriate, discuss and amend it with the advocates in the course of the trial and/or just before closing speeches.

Speeches

60 The prosecuting advocate's opening statement should ensure that the court has sufficient information about the issues in cases where there is no need for a case and issues summary. The same order of speeches should apply as in the Crown Court. I have considered, but have rejected, proposing that the prosecuting advocate should not have a right to make a closing speech save to correct defence errors of fact on law, or with the permission of the court in cases of particular complexity. The sole justification for doing so would be to remove some of the scope for repetition of evidence which is a feature of jury cases. However, it would not be an even-handed way of shortening the proceedings and, I believe, would not shorten them very much. Often the prosecuting advocate's closing speech is much shorter than that of the defending advocate. And before this tribunal the likelihood is that the judge would be better placed and more justified than a judge sitting with a jury to keep the whole proceedings within a tight rein, including both sides' closing speeches. After speeches the judge and magistrates would retire to consider their decision. Whether unanimous or by a majority, the judge on their return to court would deliver a fully reasoned judgment of the court. It follows that I see no need for the judge publicly to sum up the case before he and his colleagues retire. Any outstanding issues of law and the issues of fact at that stage can and should be publicly resolved in the court's judgment.

Sentencing

61 Sentencing would be a matter for the judge alone, for the reasons I have given in Chapter 7,[48] though there is no reason why the magistrates should not remain on the bench while he deals with it.

I recommend that in the District Division:

 

Trial in the Magistrates' Division

62 The magistrates' courts are peculiar in having a body of laymen who, together, are judges of both law and fact. Magistrates are assisted in the performance of their functions by legal advisers (who are often qualified solicitors or barristers). In many respects the latter's function resembles that of a judge, giving advice on matters where in trial on indictment the jury would receive direction or warning. However, the legal adviser has specific duties and responsibilities to the magistrates and parties which reflect the special regime that applies to summary level proceedings. For example, they provide advice on matters of mixed fact and law, practice and procedure in open court, participate in the proceedings to the extent of asking questions in order to clarify evidence and issues, and assist the magistrates in the formulation and recording or reasons.[49]

63 I see no overwhelming case for any major change in the general structure and procedures of summary trial as they are today. They combine reasonably well fairness and speed appropriate to the trial of summary offences. Particular strengths are the legal adviser's public statement of advice he has given to the magistrates on matters of law, procedure or evidence and their move to giving publicly reasoned decisions.

64 There is, however, the much canvassed problem of magistrates, as judges of law, having to rule on the admissibility of evidence which could potentially unfairly prejudice them against the defendant in their capacity as judges of fact. Short of radical change in the judicial composition of magistrates' courts - for example by making the legal adviser, the sole judge of law, procedure and admissibility of evidence - which I have not recommended, the best answer lies in the reform of the law of evidence for judges, magistrates and jurors alike. If, as I propose,[50] there is a move away from orality and rules of inadmissibility to trusting fact finders to assess the weight of the evidence for themselves, there would be no need for the present artificial procedure. And if there were to be some relaxation of present restrictions on admitting evidence of previous convictions, it would be for the magistrates to assess their relevance and weight to the issues before them.

Accordingly, I recommend that the structure and procedures of trial in the Magistrates' Division of a new unified Criminal Court should broadly follow those of the present magistrates' courts.

 

Abbreviated procedures

65 Summary trial and guilty pleas are two examples of abbreviated procedures in English law. Historically, both were ways of abridging the normal form of criminal procedure. Another possibility is an abbreviated form of summary procedure in mostly minor cases where guilt is clear, such as that used in Germany (Strafbefehlsverfahren) and France (ordonnance pénale) under which the prosecutor invites the court to deal with the matter on paper and proposes a punishment, leaving it for the defendant to object and, in any event, for the court to agree. In the event of objection or the court's non-agreement, the matter proceeds to court in the normal way. In Germany this procedure applies to the lower of two categories of crime (Vergehen) and extends to offences carrying custodial penalties of up to 12 months where the defendant is legally represented, and accounts for 30% of the work of the lower courts. In France the procedure is more restricted, applicable only to contraventions, the least serious of its three classes of criminal offence and punishable only by fines and confiscation.[51]

66 In England and Wales there are two main procedures which magistrates' courts use to dispose of certain straightforward summary cases expeditiously. The first affects trial procedure, and the second, to which I refer in more detail at paragraphs 217-219 below, relates to sentencing. They both apply to a defendant charged with offences not imprisonable for more than 3 months nor specified by statutory instrument.[52]

67 Where the prosecution has served witness statements on a defendant with the summons and the defendant does not send a plea of guilty by post, it may then prove the case in his absence or in his presence on the first hearing on the basis of the statements. Where the prosecution has made use of the procedure, there has been a significant reduction in time and work for operational police officers, the Crown Prosecution Service and the courts. There has been a fall in the number of adjournments previously caused by the widespread failure of defendants to respond to summonses and a corresponding increase in the proportion of cases finalised on the first hearing. It also safeguards the rights of defendants who attend the hearing and only then object to the absence of the witness, since the court may then allow an adjournment. The trouble is that not all areas have made use of the procedure. A recent Joint Inspectorate Report[53] showed that only 40% of police forces were fully using it and that 50% were using it in part or planned its implementation. The main reason for the incomplete and/or slow take-up of such an obviously worthwhile scheme is lack of co-operation between the various agencies. The Trial Issues Group, through the Local Trial Issues Groups, have recently urged local criminal justice agencies to take full advantage of it. The use of such a procedure has obvious advantages. It significantly reduces the administrative burdens for the police and prosecuting authorities and inconvenience to witnesses and saves court time. In the many cases of defendants failing to respond to summonses it is a speedy and efficient means of overcoming such disregard.

I recommend use in all areas and by all prosecuting authorities of the present provisions of section 12 of the Magistrates' Courts Act 1980, as amended, for disposal of cases on pleas of guilty or on proof of guilt in the absence of the defendant.

 

The role of the victim

68 The Government, in its recent policy paper The Way Ahead, records a number of measures already introduced or planned to improve the lot of victims and witnesses in the criminal justice process.[54] I have referred in Chapter 10 to a number of them at the pre-trial stage. Those concerned with the trial stage include: protection of alleged victims of rape from being cross-examined by defendants in person, or as to their previous sexual history;[55] new statutory protection of vulnerable or intimidated witnesses when giving evidence;[56] the extension of the Witness Service to all magistrates' courts, the introduction of victim personal statements (in which victims, in their own words can say how the alleged crime has affected their lives) for use throughout the criminal justice process; requiring the Crown Prosecution Service to inform victims about certain key casework decisions[57] and requiring the Probation Service to consult, and subsequently to inform, victims of serious violent and sexual crimes about offenders' release and conditions. The Government also proposes: a new Victims' Charter, possibly including statutory rights and a Victims' Ombudsman; better court facilities to secure separation of prosecution and defence witnesses and their families; provision of information about the progress of cases by internet technology; a significant increase in compensation for victims of rape and child abuse and for bereaved families in fatal cases;[58] and generally better facilities for the care of and information to victims. However, these latter proposals are, in the main, concerned with better treatment of victims, rather than with their role at the trial.

69 The Way Ahead Paper makes no mention of a number of other, more radical, suggestions that have been mooted by Ministers and others from time to time. One is that a victim, actual or alleged, and/or his family should be permitted to be a party to a criminal prosecution, as in most Continental systems, including, famously, the French partie civile, or even 'an auxiliary prosecutor', as in a few countries, notably, Germany. Sir William Macpherson in his Report on the Stephen Lawrence Inquiry,[59] recommended consideration of the former as an addition to the existing right in English law of private individuals to initiate their own criminal proceedings. In a conference considering these and other proposals in 1999 the weight of informed opinion seems to have been against the introduction of either system.[60]

70 The 'partie civile' or 'adhesion procedure', which carries with it rights of information as well as the right to participate in the trial, is not considered to confer much practical advantage in either respect over the English system. As a means of obtaining adequate or any compensation, continental experience suggests that it is too complicated for those who have no legal representation or advice. Free legal aid is limited. For those who can afford legal representation, the net recovery is often not worth the outlay. And European criminal court judges are, seemingly, reluctant to rule on the victim's claim, often referring it to the civil court. Even if a victim secures a compensation order in the criminal court, he is left with the often hopeless task of having to enforce it against the offender. An English victim has the same problem. As most offenders are poor he can mostly only expect to receive his compensation in instalments, often extending over a year and exceptionally for up to three years. If the offender does not pay and the court is unable to enforce the order, the victim remains without compensation.

71 Similar considerations apply to a system enabling the victim to participate in a criminal trial as an auxiliary prosecutor and also to claim compensation. In the few continental jurisdictions that provide for it, he is entitled to free legal aid for the purpose. However, the role, in the way it is exercised, is largely symbolic and passive, the conduct of the prosecution being left entirely or almost entirely to the public prosecutor. As in the partie civile procedure, there are important benefits to the victim in knowing at each stage what is going on and in the opportunity to make representations, either direct or indirect.

72 One view is that rights of information and effective compensation could be secured without the victim's participation in the process in either of those ways. As to information, there needs to be clear definition of who is responsible for informing the victim/witness of the progress, listing and outcome of the prosecution and provision of resources, in particular, information technology, to do it.[61] The Government, according to its Way Ahead Paper clearly has these matters in mind. As to compensation and recognition of the victim's role in the case, there is undoubtedly scope for improving the manner in which the Court is informed of the impact of the crime on him.[62]

73 Victim Support has suggested that the victim should have a more prominent role in the process. I believe that it had in mind giving the victim, whether witness or not, some formal or special status in the proceedings at trial and at sentence. This seemingly would have included permitting him or his representative to intervene to ask questions or to tell of the injury done to him to the extent that he had not already done so in evidence as a prosecution witness. Another suggestion is that he should at least have some clearly indicated place in court and one sufficiently close to the prosecutor to enable him to confer with him, for example, to enable him to contradict any misrepresentation by the defence.

74 It is difficult to see how such a scheme would fit our adversarial system, in which there are only two parties and the hearing is a substitute for private vengeance not an expression of it. To put an alleged victim whose account the defendant challenges - as will often be the case - in the ostensibly privileged role of an auxiliary prosecutor would be unfair. Whilst the current concern for the plight of victims in the criminal justice process and the steps being taken to right it are thoroughly justified, care must be taken, in particular when there is an issue as to guilt, not to treat him in a way that appears to prejudge the resolution of that issue.

75 I warmly commend the important contribution that Victim Support has made to improving the recognition and care of victims in the criminal justice process and the steps that the Government has proposed to further those ends. However, I recommend against giving victims, as some have suggested, a formal role in the trial process similar to that of the continental partie civile or auxiliary prosecutor, or any outwardly special position in relation to the prosecutor.

 

EVIDENCE

General principles

76 My terms of reference require me to examine the fairness and efficiency of the rules of evidence in the criminal justice process. That is an enormous subject in its own right, suffering, as Professor Colin Tapper has put it, from a 'blight' in the law of evidence as a whole. It is a blight that he and many distinguished academics have long attributed to incoherence, confusion and conflict in the aims and policy of the law of evidence. This is in large part due to our tradition of sporadic and piecemeal statutory reform and constantly evolving overlay of judge-made law softening its edges.[63] It also suffers from a neglect of the needs of summary trial. Rules devised in the main for, or which have their origin in, jury trial are often far too complex or artificial for application in the fast moving list of magistrates' courts. Magistrates, who undertake the bulk of summary work, or their advisers, cannot be expected to grapple with the minutiae and refinements devised principally for the more leisurely proceedings in the Crown Court.[64] Indeed, I suspect that District Judges, with their equally long and arduous lists, have little time or patience for fine evidential points.

77 For these reasons there is an urgent need for a comprehensive review of the whole law of criminal evidence to make it a simple and an efficient agent for ensuring that all criminal courts are told all and only what they need to know. I believe that an important part of this exercise should be an examination of the justice and feasibility of a general move away from rules of inadmissibility to trusting fact finders to give relevant evidence the weight it deserves. It is no part of this Review to attempt a comprehensive study or to make detailed recommendations for reform in this field. As I have indicated in Chapter 1, that should be part of a principled and comprehensive exercise in the reform and codification of the criminal law, to be undertaken by a standing body working under the oversight of the Criminal Justice Council.[65] In the meantime, I have tried to identify those areas where I see the greatest need for, and potential benefits from, change and to suggest, in the broadest terms, possible lines of reform. To provide a framework for that task I have accepted a number of features of our criminal process as given and have adopted a number of general principles, I have taken as given:

78 Within those constraints, rules of evidence should aid, not hinder, the search for truth; be such as to promote a fair trial for the defendant; be clear; be simple to apply; and, so far as is consistent with those principles, secure an efficient trial process. A common theme of all my recommendations under this section is the view I have just expressed, that we should, in general, move away from technical rules of inadmissibility and focus more on the weight of evidence. I express the theme here as a recommendation in its own right.

I recommend that the English law of criminal evidence should, in general, move away from technical rules of inadmissibility to trusting judicial and lay fact-finders to give relevant evidence the weight it deserves.

Orality

79 A common justification for our system of orality of evidence, including the rule against hearsay, is that seeing the demeanour and hearing the evidence of a witness in the witness box is the best means of getting at the truth. But there is much judicial, academic and psychological scepticism about the weight that even seasoned observers of witnesses should attach to the impressions they form of them in the witness box.[66] It may be a factor, depending on the witness and what he has to say and on the experience and good judgment of the fact finder. But it is only one factor and I respectfully agree with the Law Commission that it is not of such significance, on its own, as to justify the exclusion of hearsay.[67] I would go further and join Lord Bingham and a growing band of other distinguished jurists who, on the whole, doubt the demeanour of a witness as a reliable pointer to his honesty.[68]

80 Nevertheless, I can see no well-founded argument for a general move away from orality of evidence in criminal proceedings where there is an issue of the reliability or credibility of a witness's account on a material matter. For there are features other than the demeanour of the witness which make it a convenient way of testing the truthfulness of his evidence, in particular its external and internal consistency, consistency with what he has said previously, and matters going to credit. And, in issues not turning on truthfulness, but accuracy or reliability of memory, there is clear advantage in an oral process, at least for the purpose of testing the strength of the evidence in cross examination. The witness box (or by way of video-tape or video-link) is the place for such critical evidence to be tested and, if necessary, challenged. But there are some rules of evidence surrounding this tradition that, in my view, deserve urgent review. In one form or another, they are an expression or consequence of the rule against hearsay. Professor John Spencer in his contribution to the Law Commission's consultation process on the reform of the law of hearsay, wrote that the weakness of the principle of relying solely or mainly on oral testimony is that it requires us:

"to accept two remarkable scientific propositions: first, that memory improves with time; and secondly, that stress enhances a person's powers of recall".[69]

'Refreshing memory'/ Witness Statements

81 A witness may refresh his memory in the witness box from a 'contemporaneous' document, namely a note that he made or verified when his memory was clear.[70] However, the exercise is often, not one of 'refreshing memory', but of permitting a witness to substitute for his evidence the reading of a note of matters of which he has little or no memory.[71] Every day, in courts all over the country, police officers are permitted to give evidence by reference to their notebooks of matters of which they could not possibly be expected to have any independent recollection. Often, they freely acknowledge their total dependence on their note when the point is put to them by way or as a result of a challenge from the defence advocate. Yet, they are still expected, when giving evidence, to go through the charade of seemingly not reading their notebooks, but only glancing at them from time to time when their memory needs jogging. The understandable reality is, of course, that they have usually spent time, shortly before going into the witness box, reading and re-reading their notes so that, at best, their evidence is a test of their short-term memory of what they have just read. So, for all practical purposes, the note, though not physically admissible, becomes the evidence in chief. The absurdity of all this is aggravated by the usual and recognised practice that a witness may also refresh his memory shortly before going into the witness box by reading a non-contemporaneous written statement if he has made one.[72]

82 In recent years the courts have attempted to loosen the rules for refreshing memory so as to accord more with reality. In 1990, in R v Da Silva the Court of Appeal held that, in the exercise of a judge's discretion, a witness who has begun to give evidence could be permitted to read, for the purpose of refreshing his memory, a statement made near to the time of the events in question subject to a number of provisos: 1) that he cannot remember the events because of the lapse of time; 2) that when he made the statement it represented his recollection at the time; 3) that he has not read the statement before coming into the witness box; 4) that he wishes to read the statement before continuing with his evidence; and 5) that, having read the statement he should then continue his evidence without further reference to it.[73] In 1996 in R v South Ribble Magistrates, ex p Cochrane[74] the Divisional Court held that the Court of Appeal in Da Silva had not intended to confine the discretion of a court by reference to those provisos and that there was strong discretion in the court to permit a witness to refresh his memory from a non-contemporaneous document, applying the requirements of fairness and justice. On that approach, the Court held: that it did not matter whether the witness had not read the statement before coming into the witness box or had done so but had not taken it in for some reason; and that in some cases it could be appropriate to permit the witness to refresh his memory from the witness statement while giving evidence.

83 As the editors of the 2001 edition of Archbold indicate,[75] these decisions could lead to the routine use of witness statements as memory refreshers. They suggest that the rule should be re-cast to avoid altogether the test of contemporaneity and to make the only condition of use of a document that there is good reason to believe that the witness would have been significantly better able to recall the events in question when he made or verified the statement than at the time of giving evidence. That would permit most witness statements made much nearer the time to be used as memory refreshers. The editors of Archbold mention two features in all this to which the courts should have regard. The first is that a witness with his statement in the witness box tends to use it as a script. But that has long been the reality in the use of contemporaneous records as memory refreshers. The second is that a witness statement often bears little relationship to a witness's evidence. But inconsistency between a witness's statement and his evidence may have a number of causes, including: fallibility of the witness's recollection without it; incorrect drafting by a police officer not corrected at the time by the witness; and lies in the statement, possibly in collusion with other witnesses; or lies in the evidence. The first of those is a reason for allowing the witness to see the statement; in the second and third the defence will usually ensure that he sees it and that the court is made aware of the conflict; only where, by dint of the witness's good memory or lies, there is consistency between the two, does the statement tend to remain unused as a memory refresher or tool for cross-examination.

84 In my view, the suggested new rule would be a clearer and more principled way of recognising the reality of the Da Silva approach, namely that testimony should be an exercise in truthfulness rather than a test of long or short term memory. At present the rules seem to me to have more to do with gamesmanship than the criminal burden of proof or the reliability of evidence. In their application to prosecution witnesses, in respect of whose evidence the point mostly arises, the defence may do their best to deprive a witness of access to his statement in the witness box in the hope that he will not keep to it, whereupon they will confront him with the inconsistency and make much of it with the jury. If, notwithstanding such denial of access to his witness statement, the witness does keep to it, the defence can keep the consistency from the jury. In either case, his credibility or accuracy falls to be tested by what he said nearer the event alongside what he says in the witness box. If he has had the opportunity to read his statement before going into the witness box, he will tell the truth or lie as he did in the witness statement; if the former, the only casualty of justice may be the weakness of his short term memory. The suggested new rule would also clear away more cleanly the pre-Da Silva anomaly that a witness may refresh his memory from a witness statement before going into the witness box but not use it as a memory refresher when in the box.

85 But, whether such a useful but small step would remove the mostly time-wasting - and to the witness and jury, mystifying - procedural wrangling as to whether the witness needs or should be permitted to refresh his memory from the document in question, I have some doubt. There would still be scope for defence advocates to take points as to whether the defendant has indicated a need to refresh his memory and, if so, whether the memory refreshing document originated at a time when his memory was much clearer. Nevertheless, as a starting point in a line of reasoning and on the road to a longer goal:

I recommend consideration of making the only condition for a witness's use of a written statement for refreshing memory that there is good reason to believe that he would have been significantly better able to recall the events in question when he made or verified it than at the time of giving evidence.

Prior witness statements as evidence

86 The present rule - 'the rule against narrative' - excludes evidence of a witness's previous witness statements except where they contradict his testimony, when they may be used to challenge his truthfulness or reliability. If we reach the stage when witnesses may have recourse in the witness box to a broader range of memory refreshing documents and may largely read them, would it not be more sensible, expeditious and helpful to the tribunal, to a jury in particular, to invite the witness to put in the document as his evidence in chief, as in civil or family cases and ask him simply to confirm and, if required, add to it orally. He could then be cross-examined both as to his written statement and as to any additional oral evidence in the ordinary way. It would also remove the present nonsensical requirement for juries, magistrates and judicial fact finders, when previous statements are presently admitted as a result of cross-examination, to treat them as relevant only to the credibility of the witness and not as evidence supportive of his account of the facts.

87 As long ago as 1972 the Criminal Law Revision Committee recommended the admission in evidence of previous statements, expressing the view that if a witness is honest, what he said soon after the event is likely to be at least as reliable as his evidence at the trial, and probably more so; and if he is dishonest his evidence can still be tested in cross-examination.[76] In Scotland a witness's prior statement is admissible as evidence of any matter stated in it if it was contained in a 'document' and sufficiently authenticated by the witness prior to the trial, provided that the witness was competent when making it, that he confirms having made it and adopts it as his evidence.[77] Other Commonwealth jurisdictions have, in various ways, shown more flexibility about this than we have, tending to adopt an inclusionary rather than exclusionary approach to such hearsay, and trusting juries to give it the weight it deserves.[78]

88 The Law Commission, in its 1997 Report, Evidence in Criminal Proceedings: Hearsay and Related Topics , was not prepared to go that far.[79] It expressly rejected the option that any previous statement should be admissible regardless of the ability of the witness to remember the details in it or of their freshness in his memory at the time he made it. The Law Commission did so because it feared that it would allow the admission of many previous consistent statements, adding little or nothing and distracting fact-finders from more important evidence. It also considered that defendants would be tempted to make many denial statements in the hope that their volume would impress a lay tribunal. It acknowledged the ability and readiness of judges to exclude material which is purely repetitious and for that reason irrelevant and that, in practice, only statements adding value to a witness's statement or enhancing his credibility would become admissible. However, it foresaw long arguments on the relevance of documents and a focus on statements in documents at the expense of oral evidence, the latter of particular concern because of doubts as to the general quality of witness statements taken by police officers. For those reasons it rejected this option.[80]

89 Those concerns seem to me to give insufficient weight to the ability of the criminal courts to restrict where appropriate the use of unhelpful or simply repetitious hearsay by the mechanism of judicial permission, as applies in civil proceedings.[81] Disputes about the grant of permission should not interrupt or delay trials once under way; the proper place for resolution of such matters is before trial as part of the process leading to pre-trial assessment and, if necessary, pre-trial hearing. In the result, the Law Commission recommended the admissibility of a witness's previous statement as evidence of fact where the witness: first, does not, and cannot reasonably be expected to, remember a matter well enough to be able to give oral evidence of it; second, he has made a statement about it when it was fresh in his memory; and third, he indicates in evidence that it is his statement and that to the best of his belief it is true.[82] As the Law Commission states, for most purposes such a rule would remove the necessity for witnesses to have recourse to statements to refresh their memory because the statement would stand as part of their evidence. The only possible use for it as a memory refresher would be where a witness has a partial recollection which genuinely needs jogging by his witness statement.

90 However, there is little logic in distinguishing between no independent recollection and partial recollection for this purpose. And, as the Law Commission points out, under the present law, the use that can be made of the statement, if the witness is cross-examined on it, varies according to whether it is regarded as evidence or a memory refreshing document - in the former, evidence of the facts, in the latter going only to consistency. In my view, the answer is not to maintain the two possible uses of witness statements and give them the status of evidence of fact, as suggested by the Law Commission.[83] Instead, all previous statements should be admissible regardless of the existence or extent of the witness's memory, leaving their weight, along with the oral evidence of the witness after testing in cross-examination, a matter for determination by the tribunal. I draw strength from the following argument of the Scottish Law Commission in its Report in 1995, giving rise to the present Scottish law admitting prior witness statements:

"7.14 ... First, if a prior statement by a witness is of such a nature that its reliability may be accurately assessed by a properly directed jury, it should be admissible not only to support or undermine the witness's credibility, but also as evidence of the truth of its contents, whatever the witness may say in court about the matters dealt with in the statement.... That would simplify the law and render admissible reliable evidence which, under the present law, is inadmissible for that purpose.

7.15 Secondly, if a witness finds it difficult to give evidence in court - whether because his or her memory of events is no longer accurate, or because he or she is under considerable stress ... for any ... reason - a prior